This Friday’s Five is a bit early this week, but I have to post today as my blog is going through some upgrades and I will not be able to post this tomorrow (Friday). I’ve previously written about what Labor Commissioner hearings are (also known as Berman Hearings here in California) and how to prepare for the hearings. This post is more generally about the strategy during Labor Commissioner hearings, and items to remember while completing the process.
1. Be courteous to everyone during the process.
Be nice to the clerk checking people in at the Labor Commissioner’s office. Be nice to the Deputy Labor Commissioner hearing the claim. And yes, be nice to the claimant. You can be nice while still aggressively defending your position, just don’t be a jerk about it. I can hear other lawyers criticizing this advice already with the idea that you do not want to make the process pleasant for the other side in order to deter this type of behavior. I disagree with this approach. First, once the claim is resolved, it is generally binding on the parties, so by making the process unpleasant on the claimant, it will not be deterring any other actions. Second, the hearing officers are human beings, if they get the sense that you (or your opponent) are the unreasonable party creating the conflict, they are probably going to find against you.
2. Do not take it personally.
Because Labor Commissioner claims can be relatively small, and parties do not need to be represented by a lawyer, many parties represent themselves during the process. However, just like negotiating someone’s salary, employers need to view the process as a business transaction, not a personal attack. If it is too hard to separate the personal issues from the process, it is best to hire a lawyer to help make the arguments for the company and to help take the personal aspect of the process out of the equation.
3. Read the DLSE’s website for the Labor Commissioner’s view of the law.
The DLSE has a great website setting out its position on some aspects of California labor law. While the DLSE’s view expressed on its website is not necessarily binding on the parties, it is a good starting point regarding what issues the company will likely be challenged on during the proceeding.
4. Make the record.
The actual Labor Commissioner hearing is tape recorded, and the parties and any potential witnesses give testimony under oath during the proceeding. Therefore, because there is a record of testimony provided under oath, if the case is appealed to superior court by either party after the hearing, this testimony will be very important in subsequent proceedings.
5. Don’t make the wrong record.
This goes back to being prepared. All parties have to be truthful as they are sworn in, but be careful in your testimony. Think through all of the facts before the hearing. If you wrongly recall facts or begin to guess at answers during the Labor Commissioner hearing, and then try to correct those facts at a subsequent proceeding, it will adversely affect your credibility. Think through your testimony before the hearing in order to be as accurate as possible.